Tongaat Mall collapse liabilities may unfold in the DOL investigation and in civil claims, since it occurred during a procedural work stoppage.
UPDATE 2014 JANUARY 14; The SA Department of Labour’s Tongaat Mall Commission of Inquiry will begin its formal hearings in February 2014, with a four-person enquiry to formally start evidence gathering, and to report its findings by July 2014.
The commisision has the mandate to investigate concerns and the series of events that led to the tragic event, said DOL. The Commission awaits outstanding reports from affected parties.
The commission is expected to prepare a report of its findings, formulate recommendations which will be presented to Labour Minister Mildred Oliphant, the Department of Labour’s Chief Inspector Thobile Lamati, and the Directorate of Public Prosecutions for their consideration.
The Section 32 hearing is usually appointed by the Department of Labour against parties whose negligence results in occupational injuries and death of workers.
The Department of Labour already last year appointed its Manager of Occupational Health and Safety, Phumudzo Maphaha, to preside over the commission.
“Members of the commission have visited and assessed the site. All interested stakeholders, represented by their legal representatives, and workers were also engaged. A number of issues arose that the commission would be pursuing with the contractors during the hearing,” said Maphaha.
The hearing will be held at Municipal offices in Tongaat. It is expected that the Commission will conclude its work in six months.
“We expect to call between 20 to 50 witnesses to appear before the commission for interviews. In a month we expect the commission to sit for at least two weeks. The hearings will be held from Tuesdays to Fridays. Mondays will be used by members of the Commission for preparations. The pace of our work would be dependent on the availability of stakeholders,” said Maphaha.
The hearings will start at 9am to 5pm. The Department of Labour expects to spend about R2m on the work of the commission.
Slab collapse incident background
The construction slab collapse occurred after the court had ordered a construction work stoppage to obtain permissions, yet factors other than procedure were already at play.
eThekwini municipality (Durban) now wants the construction demolished, since the safety of a partially collapsed structure could not be ensured.
The fiasco that killed one worker, injured 29, hurt the reputation of the developer and contractor, and may scrap the project, is a “typical case of ignoring the law and the court. Breach of statutory duty has invoked delict, and the developer can expect a civil claim for damages based on ignoring the court order”, said NIOCCSA board chairman Rudy Maritz.
Shopping mall health and safety liabilities
See a report on the format of the offical SA Department of Labour Tongaat Mall collapse hearing at http://sheqafrica.com/tongaat-mall-collapse-hearing/
Some health and safety measures in construction and in shopping centres are clearly deficient. In May 2013, a shootout at a Cape Town mall injured six people. Two days later a fire broke out in a Johannesburg shopping complex.
In July 2013, Menlyn Park was evacuated due to a bomb scare. In September there was a 60% increase in criminal attacks in shopping centres.
Responding to the question of who, in terms of the Occupational Health and Safety Act, are responsible for health and safety at shopping centres, Maritz said; “In the narrowest sense, each retailer in a shopping centre is responsible for its own employees.”
As anchor tenants and most shops in larger centres are limited to a few corporate retailers, such as Shoprite Checkers, Pick ’n Pay, Foschini Group, Edcon, and Massmart, one could assume these to have sufficient health and safety risk management measures in place.
Smaller retailers have limited staff, but should ensure the minimum health and safety measures are in place.
Centre management carries overall responsibility for non-lettable space, as agents for the owners of malls. Owners are mostly investment companies like Old Mutual, Growthpoint, Redefine Properties and others.
Machinery such as elevators, escalators, HVAC and fire suppression, is also the responsibility of centre management.
Most malls run on turnover-based leasing, which means that a tenant’s rent is increased based on its sales turnover. The more consumers a centre can attract, the greater their income from rental income.
Infra-red footfall counters are used to measure the number of people entering a shopping centre, and on average a large regional mall attracts 1.5 million people per entrance per month.
This influences the floor-loading in non-lettable areas, where shoppers stroll. In the lettable areas, retailers must ensure the floor-loadings are not exceeded in terms of shelving and stock holding, or potential crowding.
OHS Act Section 37 comes to mind first. There are many role players, from consumers to facility managers, to the building owners.
When a mall is constructed, a rather complex structure is involved. The land is purchased by a developer, who sells the mall on completion, or enters into a joint venture agreement with an investor, said Maritz.
In smaller, and more mixed-use developments, the owner and developer are usually two different legal entities, but often with the same directors.
Who then is the client as defined in the Construction regulations? The company who engages the construction role players is deemed to be the client, who appoints various agents, such as town planners, architects, structural and civil engineers, mechanical engineers to design plant and plant rooms, traffic engineers for roads and intersections layout.
Agents operate in the objective of the OHS Act Section 37(2), and the client remains the ultimate responsible person.
If the client fails to comply with the spirit of the law, the mall owner can be held accountable too. The client in the first instance works for the owner, and constructs the mall for the owner who then is also a client, as defined.
Structural collapse raises the question of who has the legal duty to prevent it. At the Tongaat Mall construction site, it was alleged that the process to get permission for the construction was not properly followed.
This was confirmed by the court issuing an order to stop construction in order to follow the process. Every activity on site after the court order of 7 November was an unlawful activity. The mall owner must have known this. The developer must have known this. All the appointed agents must have known this. Yet they continued building.
Would the incident have been prevented if they adhered to the court’s order? Probably not. It would have delayed the incident it by a few weeks to “follow the process”, but had it been given the okay, the incident could still have happened.
Only an administrative matter was ruled to be out of place, yet all parties involved face civil claims and perhaps prosecution in terms of Chapter 5 of the Prevention of Organised Crime Act, since they derived financial benefit from an unlawful activity, in this case construction stopped by a court order.
Mall slab construction safety recommendations
Mall owners should take these construction safety measures, among others;
• Set quality standards for the people you engage
• Set quality standards for materials to be used
• Set design standards based on tenant profiles and occupant needs
• Develop method statements based on the design of the mall
• Define who does what, when and how, in the method statement
• Identify inter-dependencies during project and communicate delays regularly
• Develop a system of performance guarantees and verification tests.
• Civil hold points are critical stops in the process where the verification checks should be performed to ensure adherence to standards. It should performed in the presence of the Resident Engineer who should sign off on the hold-point, verifying satisfactory completion.
Among the aspects of structural integrity are:
o Geo-technical reports for proper design of foundations and bearing points on structural frames
o Concrete specifications, regular slum testing, cube testing, checking on ordered versus delivered specifications
o Formwork design and slab curing schedules should be strictly enforced prior to removal of formwork.
Facilities safety management
Once a construction project is completed, the owner of the mall remains responsible for the continued safe use thereof. The owner derives an income, tenants derive an income, consumers use the mall.
‘Safe use’ thus includes all users, not just the owner. The term “safe for continued use” in Construction Regulation 9(4) and (5), refers to the structural integrity of the building and related structures, including floor-loadings.
Other health and safety related requirements fall within the scope of Section 9(1) of the OHS Act.
Agreements between the various role players may well determine who has the legal obligation to comply with which portions of the Act.
From a centre management perspective, there are around 10 contracting companies involved in the management of a large shopping centre; security, cleaning, hygiene, fire systems, HVAC systems, elevators and escalators, CCTV systems, internal communication systems, event management, plumbing and electrical contractors.
All these parties operate under formal agreements with the management company. Not all perform construction related activities, but they all have a legal duty in terms of section 9, and centre management has the accountability in terms of section 37.
Role of professional organisations in negligence
According to the disciplinary procedure of the Engineering Council of SA (ECSA), it may suspend an engineer and impose a fine for failing to comply with the Rules of Conduct of Registered Persons.
A disciplinary investigation is directed towards the professional conduct of the registered person. It is not a legal process intended to recover damages on behalf of any party or to enforce specific performance by the respondent, therefore it does not oblige the respondent to perform a specific act.
Disciplinary investigations may take several months to conclude, given the nature of the process.
In a case study of 2012, where a three storey building collapsed over half the plan area of the building, thirteen workers were reportedly injured, one was killed and another missing in the accident.
An investigation by ECSA into the conduct of the engineer revealed that lack of due skill, due care and diligence, lack of competency, unacceptable practices, inability to carry responsibilities, disregard for public health and safety and non-compliance with accepted standards were the general offences.
A lesson is to be learned from each one of these contraventions is that a registered person must comply with all these rules to avoid sanction. In this case, non-compliance with all the rules cited justified deregistration of the engineer.
However, not all professional agents are registered, and the number of unregistered persons working as agents is uncertain.
Latvian mall collapse
In the same week as the Tongaat Mall collapse, Latvian president Andris Berzins described the collapse of a supermarket in Riga that claimed the lives of at least 54 people as “mass murder” of innocent people.
The third and final part of the roof of the building in the capital, Riga, caved in, after the initial incident, prompting a fresh search for up to 10 people. Only the four walls now remain.
The secondary collapse caused panic in a neighbouring shopping centre which shook violently as shoppers ran into the street.
Latvian officials said that soil and other material used to build a garden on the roof might have caused the collapse. Automatic doors to the supermarket were jammed shut during the incident. About 40 people were wounded, including 13 fire-fighters, and 23 people remain in hospital.
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